Judgment:
B.J. Shethna, J.
1. The. petitioner has challenged in this petition the impugned order dated 11.5.89 (Annex. 1) passed by the Board of Revenue as well as the order at annex. 2 dated 13.12.83 passed by R.A.A. and the impugned cancellation order dated 19.2.80.
2. The petitioner, who was an agriculturist, having land, was initially allotted land in question on temporary basis in 1973. Thereafter, permanent allotment of the said land was made in his favour on 30.8.74 under the Rajasthan Colonisation (Allotment and Sale of Govt. Land in Rajasthan Canal Colony Area) Rules, 1975. On a complaint made by one Sukhia, his allotment was cancelled by the allotting authority by an order dated 19.2.80 after giving him a notice to show cause as to why his allotment should not be cancelled. Aggrieved of that order, the petitioner filed an appeal before R.A.A. which was dismissed by order at Annex. 2 and the revision was also dismissed by the Board of Revenue by an order at Annex. 1, which are under challenge in this petition, which is filed under Articles 226/227 of the Constitution of India.
3. Learned Counsel Shri Shreemali submitted that the petitioner was having only 14 bighas of land which was less than minimum requirement of 25 bighas, therefore, he was landless person as defined under Rule 2(xiii) of the Rules. Therefore, he submitted that the impugned order of cancellation is bad in law and liable to be set aside. He also submitted that the petitioner was not cultivating the land personally for two years but his admission should not have been relied upon in part against him because thereafter he was cultivating the land personally. He also submitted that mandatory provisions of Section 14 of the Rajasthan Colonisation Act, 1954 (for short, 'the Act') have not been complied with and Rule 21, under which the cancellation order was passed. It cannot over ride the provisions of the Act.
4. Apart from the fact that this contention was raised for the first time regarding applicability of Section 14 of the Act before this Court in this petition, this contention has no force on merits also. Section 14 of the Act and Rule 14 of the Rules are totally different. Cancellation order of allotment can only be passed under Rule 21. Mr. Bhati appearing for the respondent rightly submitted that the case of the petitioner does not fall under Section 14 of the Act but under Rule 21 of the Rules. It is also not in dispute that the petitioner was not cultivating the land for a particular period. In fact, the petitioner himself had admitted that he was not cultivating the land for a particular period. The allotment can be cancelled if the person is not personally cultivating the land for a particular period. Secondly, even if he was having 14 bighas land which is less than minimum limit of 25 bighas of land as provided under the definition of 'landless person' then also cancellation order could have been passed because it was a suppression of fact. If he had pointed out while applying for permanent allotment that he was already having 14 bighas of land then the allotting authority could have considered the fact at the time of allotment. Cancellation order of allotment can be passed on the suppression of fact or for non-cultivation for a particular period. Both the criterid were satisfied in this case. Therefore, the cancellation order was passed by the Allotting Authority and in my opinion, the R.A.A. and the Board of Revenue have rightly dismissed the appeal and revision respectively. Hence, this contention of Mr. Shreemali is rejected.
5. Relying upon Supreme Court decision in case of Brij Lal v. Board of Revenue and Ors. : AIR1994SC1128 . Mr. Shrimali submitted that the petitioner is in possession of the land for more than two decades, therefore, if he is dis-possessed now, then it would be travesty of justice. It is true that the petitioner was initially cultivating the land on temporary basis since 1973 and the permanent allotment was made in 1974. Thus, for about 23 years he has remained in possession. But the facts of Brij Lal's case were totally different then of this case. In Brij Lal's case (supra) the petitioner was minor and there was no proof that he procured temporary allotment by giving false information as to his age. The apex court held that rejection of permanent allotment on the ground that he was minor on the date of temporary allotment was not proper. In this case, the facts are entirely different. The petitioner was not landless person. He was having 14 bighas of land. Still he suppressed this fact and got temporary as well as permanent allotment in his favour. The main intention of the Act is to provide land to landless persons and not to those persons who are already having land. It is true that the petitioner has remained in possession of the said land for all these years in spite of the order of cancellation passed way back in 1980 but because of the hierarchy of the system he continued to remain in possession first by the stay from R.A.A. then from the Board of Revenue and from this Court in 1990. Thus, by virtue of the interim orders he continued to remain in possession for 23 years. In my opinion, if such persons are allowed to remain in possession of the land, it would be travesty of justice because the needy and genuine persons, who are otherwise entitled for allotment of such land, would be deprived of from the allotment of such land. It is true that the petitioner must have nourished the land for over a period he of two decades but at the same time he has also earned the fruits out of it. If stay was not granted in his favour by the Courts below and this Court he would have never remained in possession of the land. By interim orders of the Court, he has earned the benefits of it. Therefore, he can not make any grievance now. Therefore, in my opinion, Brij Lal's case (supra) has no application to the facts of this case. Hence, the Second contention raised by Mr. Shreemali is rejected.
6. Relying upon the Apex Court's judgment in the case of Tej Singh v. State of Rajasthan and Ors. reported in : [1994]3SCR1013 . Mr. Shreemali submitted that even if it is held that the cancellation order and the orders passed by the R.A.A. and the Board of Revenue are valid then also this Court should set aside the same in view of the fact that the petitioner is in possession of the land for more than 20 years. It is true that in Tej Singh's case, the Apex court set aside the order of cancellation, though it held that the cancellation order was valid but on the peculiar facts of that case. It was a case of a temporary Gram Sevak in 1968, who admittedly resigned from the said post in 1973 and took up his evocation as agriculturist and for more than 20 years he was personally cultivating that land and developed the same from loan obtained by him for the purpose. At the cost of repetition I may state that the present petitioner was already having other land. It was also found by the Courts below that the land in question was not personally cultivated by him but through other person on contract and at the time of allotment the fact of having other land was supressed by him. On facts of that case, the Apex Court exercised its powers under Article 136 of the Constitution of India. Mr. Bhati has rightly pointed out Supreme Court's judgment in the case of Mohd Yunus v. Mohd. Mustkim : [1984]1SCR211 and submitted that this Court has very limited powers under Article 227 of the Constitution of India. Even error of law Cannot be corrected by this Court in exercise of powers under Article 227 of the Constitution. Though it is stated that this petition is under Articles 226 and 227 of the Constitution of India but strictly speaking it is a petition under Article 227 of the Constitution of India. On the facts of this case, I am not include to exercise my powers under Article 226 or 227 of the Constitution of India in favour of the petitioner particularly when the Courts below have not committed any error much less error on law or jurisdictional error.
7. In view of the above discussion, this petition fails and is dismissed with costs. Stay granted earlier stands vacated forthwith.